State Of West Bengal v. Mahamaya Banerjee

Manoj Kumar Mukherjee, J.:-

(1) Gita banerjee, the predecessor - in - interest of the opposite parties, filed a partition suit (title suit no. 7/77) in the third court of the subordinate judge (assistant district judge) , howrah, against her sister, the petitioner herein, claiming a moiety share in the suit property. For non - appearance of the petitioner the suit was decreed ex parte in a preliminary form on january 18, 1978. On march 2, 1979 the petitioner, through her learned advocate sri sachin mukherjee, filed an application under o. 9, r. 13 of the code of civil procedure ('code' for short) for setting aside the ex parte decree which was registered as misc. Case no. 15 of 1979. On july 14, 1979 the petitioner filed another application through the said advocate with a prayer for drawing up of another preliminary decree by setting aside the ex parte decree earlier passed after taking into consideration the fact that pursuant to a deed of settlement executed by their father on august 8, 1965 she and her sister were entitled to 2/3rd and 1/3rd share respectively in the suit property. On april 25, 1981 when the above misc. Case was taken up for hearing the petitioner filed an application through the same advocate stating that in view of her earlier application dated july 14, 1979 praying for a second preliminary decree she did not find it expedient to proceed with the misc. Case any further. The learned judge accordingly dismissed the misc. Case for non - prosecution by his order no. 56 april 25, 1981. The application dated july 14, 1979 was also rejected by the learned judge by his order no. 78 dated august 16, 1982 on a finding that the same was wholly misconceived. An application for review of the above order was then filed by the petitioner on october 6, 1982 and this application was registered as misc. Case no. 9 of 83. On june 16, 1984 the petitioner filed another application through the same advocate stating that as she had alienated her right, title and interest in the suit property in the meantime, she did not wish to proceed with the suit. In view of the above submission the learned judge dismissed misc. Case no. 9 of 1983 by his order no. 111 dated june 16, 1984.

(2) Thereafter the petitioner filed an application under s. 151 of the code on july 7, 1984 through another advocate engaged by her praying for review of the above order no. 111 dated june 16, 1984. In this application the petitioner averred, inter alia, that she was an old and illiterate lady, that she was not aware of the provisions of law and the implication of the ex parte preliminary decree and that owing to wrong legal advice of her erstwhile advocate she had filed misconceived applications and allowed the misc. Cases to be dismissed. She accordingly prayed for setting aside the order dated june 16, 1984 after reviewing the same. Another application was thereafter filed by her to amend the above application under s. 151 of the code to include an averment that the misc. Case no. 15 of 1979 should be restored otherwise she would suffer irreparable loss and injury and a prayer for setting aside the order dated april 25, 1981 dismissing the misc. Case. The opposite parties contested the application by filing a written objection. In support of her averments in the application the petitioner examined sri sachin. Mukherjee, the advocate earlier engaged by her. By his order no. 216 dated december 23, 1987 the learned judge dismissed the application and for that matter, the application for amendment. Aggrieved thereby the petitioner has filed the present revisional application, which has been heard as a contested one.

(3) Having considered the nature and contents of the various applications filed by the petitioner through her learned advocate sri sachin mukherjee, we have no hesitation in concluding that the petitioner was wrongly advised by him, particularly in filing the application for drawing up of another preliminary decree by setting aside the ex parte decree earlier passed and in not prosecuting the application earlier filed under o. 9, r. 13, c. P. C. It is elementary knowledge that so long as a decree, either preliminary or final, legally subsists, it cannot be replaced or substituted by another decree. It necessarily follows that if and when the ex parte preliminary decree in the instant suit was set aside by allowing the application under o. 9, r. 13 of the code then only another preliminary decree could have been passed. Therefore, filing of the application by the petitioner expressing her intention not to proceed with misc. Case no. 15 of 1979, as she had filed an application for substitution of the preliminary decree, was wholly misconceived and must be attributed to wrong advice of her learned advocate. In making this observation we have drawn inspiration from the sworn testimony of the learned advocate himself who admitted that the steps taken by him were not proper and that the applications were filed out of his own bona fide mistake. On facts therefore we are fully satisfied that the petitioner has been badly let down by the wrong advice given to her by her former advocate and placed in an unenviable position.

(4) From the impugned order we find that the learned judge appreciated the predicament of the petitioner, but rejected the application solely on the ground that the phrase "sufficient reason" in o. 47, r. 1 of the code did not include misconception of fact and/or law of the advocate and inherent power could not be used to correct the erroneous view of the learned advocate. We are, however, unable to agree with the learned judge.

(5) Though in the application filed under s. 151 of the code, along with its amendment, the petitioner prayed for setting aside the order dated june 16, 1984 rejecting the application for review and the order dated april 25, 1981 dismissing the misc. Case registered on the application under o. 9. R. 13 of the code after reviewing the above two orders, the application was not intituled as one under o. 47, r. 1 of the code. In fact, considering the nature of relief sought for the above rule had no manner of application in the facts and circumstances of the instant case. As has been already noticed, the principal ground which was canvassed for setting aside the above orders was that whatever steps she had taken earlier in connection with the suit was under wrong advice of her advocate; and as we have already noticed, the testimony of the learned advocate also supports that view. By filing the application, therefore, the petitioner prayed for justice which was denied to her owing to patently wrong steps taken by her under legal advice. In such a situation the court would be failing in its duty if it does not invoke its inherent powers to come to her rescue. Every court functions for the purpose of doing justice according to law and therefore shall be deemed to possess, as a necessary corollary thereto, all such powers as may be necessary to do the right and to undo a wrong in course of its such functioning. As exercise of inherent power is provoked by necessity its operational field and sphere can neither be well defined nor circumscribed. It is also not desirable to put such a wholesome and salutary power in a strait - jacket. Therefore, so long as it is not trammelled or trampled by any express statutory provision inherent power may be invoked and exercised to meet any judicial exigency.

(6) In absence of any legislative inhibition to the exercise of the inherent power in the facts and circumstances of the instant case we therefore allow the application under s. L5l of the code of civil procedure, as amended, and set aside the order no. 56 dated april 25, 1981 dismissing the misc. Case no. 15 of 1979. The learned trial judge is hereby directed to proceed with the above misc. Case in accordance with law. In view of this direction no order is necessary in respect of misc. Case no. 9 of 1983.

(7) The revisional application is thus allowed without any order as to costs.

(8) Sudhanshu sekhar ganguly, j. : i agree. Application allowed.